278 A.D. 253, Joseph Burstyn, Inc. v. Wilson

Citation:278 A.D. 253, 104 N.Y.S.2d 740
Party Name:In the Matter of JOSEPH BURSTYN, INC., Petitioner, v. LEWIS A. WILSON, as Commissioner of Education of the State of New York, et al., Respondents.
Case Date:May 09, 1951
Court:New York Supreme Court Appelate Division, Third Department

Page 253

278 A.D. 253

104 N.Y.S.2d 740

In the Matter of JOSEPH BURSTYN, INC., Petitioner,

v.

LEWIS A. WILSON, as Commissioner of Education of the State of New York, et al., Respondents.

Supreme Court of New York, Third Department.

May 9, 1951

Page 254

PROCEEDING under article 78 of the Civil Practive Act (transferred to the Appellate Division of the Supreme Court in the third judicial department by an order of the Supreme Court at Special Term, entered in Albany County) to review and annul a determination of respondents, constituting the Board of Regents of the University of the State of New York, which rescinded licenses for the public exhibition of a motion picture, entitled 'The Miracle', on the ground that such picture was sacrilegious.

COUNSEL

John C. Farber, Samuel E. Aronowitz, Earle R. Koons, Ephraim S. London and Clendon H. Lee for petitioner.

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington for respondents.

Page 255

Patrick C. Dugan, Charles J. Tobin, Edmund B. Butler, Porter R. Chandler and George A. Timone for the New York State Catholic Welfare Committee, amicus curiae.

Osmond K. Fraenkel, Herbert Monte Levy, Robert Markewich and Newell G. Alford, Jr., for New York City Civil Liberties Committee and National Council on Freedom from Censorship, amici curiae.

FOSTER, P. J.

This is a proceeding under article 78 of the Civil Practice Act to review a determination of the Board of Regents of the University of the State of New York which rescinded licenses for the public exhibition of a motion picture film, entitled 'The Miracle', on the ground it is sacrilegious.

The picture, produced in Italy, depicts a demented peasant girl tending a herd of goats on a mountainside. A bearded stranger appears, garbed in a dress reminiscent of biblical times. She imagines him to be St. Joseph, and that he has come to take her to heaven. While she babbles about this he says nothing but plies her with wine, and the implication is left that he seduces her. Later, when her pregnancy becomes known to the villagers, they mock her and place a basin on her head in imitation of a halo. She exclaims at one point as to her pregnancy, 'it's the grace of God'. She leaves the village to take refuge in a cave, and finally gives birth to a child in the basement of a church which stands on a high hill.

According to the English dialogue, in her babbling to the bearded stranger, she makes these statements: 'I'm not well * * * and taking a loaf of bread he broke it ... and an Angel of the Lord appeared to him in a dream and said ... Joseph, son of David, have no fear to take Mary as your bride ... for what is being conceived in here * * * St. Joseph * * * cast aside my body and take my soul ... I would feel so happy without this weight * * * St. Joseph has come to visit me, what heaven, what heaven on earth ... the mad woman has received a grace'.

On March 2, 1949, the motion picture division of the State Education Department issued a license for the picture with Italian dialogue. Apparently it was never shown pursuant to this license. On November 30, 1950, it was again licensed as a part of a triology entitled 'Ways of Love', with an English dialogue. After it had been publicly shown under this license the Board of Regents received many protests against its exhibition on the plaint that it was sacrilegious. A committee of the Regents was requested to view the picture, and

Page 256

after it had reported there was a basis for the claim that the picture was sacrilegious the Commissioner of Education issued an order requiring the licensees of the film to show cause at a hearing before the same committee why the licenses should not be revoked.

At the hearing before the committee, petitioner, who was the holder of the license last issued, appeared specially and challenged the Regents' authority to proceed in the matter on the theory that it had no power of review under the statute as to a license once issued. The committee reported that in its opinion the Regents had authority to consider whether the film was licensed illegally or not, and recommended that the Board of Regents, as a committee of the whole, view the picture. This action was taken, and after due consideration the board found the picture to be sacrilegious, and voted to rescind the licenses therefor on February 16, 1951.

Overshadowing all other arguments petitioner contends on this review that censorship of sound motion pictures is unconstitutional as a previous restraint on freedom of speech and freedom of the press, in violation of the 1st and 14th Amendments to the Constitution of the United States and section 8 of article I of the Constitution of the State of New York. We do not regard such an issue as an open one in this court. Motion pictures have been judicially declared to be entertainment spectacles, and not a part of the press or organs of public opinion; and hence subject to State censorship ( Mutual Film Corp. v. Ohio Industrial Comm., 236 U.S. 230). This court has upheld the power of the State to censor motion pictures (Pathe Exchange, Inc., v. Cobb, 202 A.D. 450), a decision which was affirmed by the Court of Appeals (236 N.Y. 539). Strong criticism has been voiced against the distinctions made between movie films and freedom of expression otherwise guaranteed (36 Corn. L. Q., 273); and some dicta would seem to indicate a change of viewpoint (United States v. Paramount Pictures, 334 U.S. 136, 166). But despite the enlarged scope of motion pictures as a medium of expression in recent years, and the addition of sound dialogue, the latest authoritative judicial expression which bears directly on the subject still recognizes the distinction (Rd-Dr Corp. v. Smith, 183 F.2d 562, certiorari denied 340 U.S. 853). In...

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3 practice notes
  • 63 Misc.2d 225, Thomas v. Thorne
    • United States
    • 25 Mayo 1970
    ...are arbitrary and capricious, the cases are legion holding that a Court has a right of review. Matter of Joseph Burstyn, Inc. v. Wilson, 278 A.D. 253, 104 N.Y.S.2d 740, aff'd 303 N.Y. 242, 101 N.E.2d 665 held: Under the familiar rule applicable to all administrative proceedings, we may not ......
  • 343 U.S. 495 (1952), 522, Joseph Burstyn, Inc. v. Wilson
    • United States
    • Federal Cases United States Supreme Court
    • 26 Mayo 1952
    ...license for the showing of a motion picture under § 122 of the New York Education Law on the ground that it was "sacrilegious." 278 A.D. 253, 104 N.Y.S.2d 740. The Court of Appeals of New York affirmed. 303 N.Y. 242, 101 N.E.2d 665. On appeal to this Court under 28 U.S.C. § 1257(2......
  • 303 N.Y. 242, Joseph Burstyn, Inc. v. Wilson
    • United States
    • New York New York Court of Appeals
    • 18 Octubre 1951
    ...if the board had the power, there was no justification for revocation. Of course, as the Appellate Division below, in its opinion, said (278 A.D. 253, 260): 'Under the familiar rule, applicable to all administrative proceedings, we may not interfere unless the determination made was one tha......
3 cases
  • 63 Misc.2d 225, Thomas v. Thorne
    • United States
    • 25 Mayo 1970
    ...are arbitrary and capricious, the cases are legion holding that a Court has a right of review. Matter of Joseph Burstyn, Inc. v. Wilson, 278 A.D. 253, 104 N.Y.S.2d 740, aff'd 303 N.Y. 242, 101 N.E.2d 665 held: Under the familiar rule applicable to all administrative proceedings, we may not ......
  • 343 U.S. 495 (1952), 522, Joseph Burstyn, Inc. v. Wilson
    • United States
    • Federal Cases United States Supreme Court
    • 26 Mayo 1952
    ...license for the showing of a motion picture under § 122 of the New York Education Law on the ground that it was "sacrilegious." 278 A.D. 253, 104 N.Y.S.2d 740. The Court of Appeals of New York affirmed. 303 N.Y. 242, 101 N.E.2d 665. On appeal to this Court under 28 U.S.C. § 1257(2......
  • 303 N.Y. 242, Joseph Burstyn, Inc. v. Wilson
    • United States
    • New York New York Court of Appeals
    • 18 Octubre 1951
    ...if the board had the power, there was no justification for revocation. Of course, as the Appellate Division below, in its opinion, said (278 A.D. 253, 260): 'Under the familiar rule, applicable to all administrative proceedings, we may not interfere unless the determination made was one tha......